The Duck of Minerva

The Duck Quacks at Twilight

Is the jury out on universal jurisdiction?*

January 7, 2010

The two different countries I call home (Canada and the UK) have recently had to deal with universal jurisdiction in relation to war crimes.

First, as I’ve written about here, it has come to light that Canadian officials likely knew that Afghans captured by Canadian forces and subsequently transferred to Afghan prisons were being tortured. Failure to react to such allegations and relevations is a crime under the Third Geneva Convention Relative to Prisoners of War. Yet, what is interesting about this particular issue is that the Geneva Convention is quite clear that it is the government (as opposed to the military) is responsible for the violation of the law.

Yet the Canadian government has so-far refused to open up an investigation into the allegations (made by a Canadian diplomat, Mr. Colvin who served in Kabul and now does so in Washington). Instead, the issue is being handled by the Military Police Complaints Commission. The question is whether or not this is sufficient for the International Criminal Court – of which Canada is a party – who could potentially begin an investigation if they felt that the actions of Canada were insufficient. That the ICC prosecutor, Luis Moreno Ocampo has previously indicated this year that he willing to open up investigations into Western governments, does seem to leave the Canadian government in a potentially vulnerable position.

Second, a judge in the UK recently issued an arrest warrant for the former Israeli Foreign Minister Tzipi Livni for war crimes at the request of Palestinian plaintiffs. The allegations made against Livni were that she was responsible for war crimes committed during the Israeli offensive in Gaza last year. The warrant was revoked when it was announced by a very angry Israeli government that Livni would no longer be visiting the UK for her scheduled meeting with UK government officials. Additionally, the warrant was the cause of significant embarrassment for the UK government whose role in the Middle East peace process is now in some doubt (particularly as Israeli officials will now not be particularly likely to visit the UK). But the Court which issued the warrant has the right to do so at its own discretion. As war crimes have universal jurisdiction, the court felt that it was free to act.

For advocates, of universal justice, the implications of both of these cases are clear: it is about promoting the rule of law and addressing grievances so that real peace can be built. More simply, it’s the idea that justice should not stop at a national border. Officials, whether they are the Canadian Minister of Defence, the President of Sudan or the former Israeli Foreign Minister should all be susceptible to indictment.

And clearly, for the governments of these countries, it is about pragmatism. International legal arrangements which effectively damage diplomacy, or the ability of officials to do their job, is of benefit to no one.

But in reality, such concerns may also extend to the international legal institutions themselves. Although Ocampo may be a fan of universal jurisdiction, this may be tempered by a degree of realism. As the ICC and the US government under the Obama Administration are slowly working towards a new understanding (if not an entirely improved relationship), any attempt to prosecute Canadian officials may actually scare away the American government even further from the ICC – particularly given its skittishness about “activist” lawyers, politicized cases under the banner of universal jurisdiction.

To some extent it comes down to the old (clichéd?) question of “Order vs Justice” in International Relations – whether we should let justice be done though the heavens fall, or whether order without justice can really be considered any order at all. Perhaps more simply, it is at what cost international institutions (or even domestic ones) are willing to demonstrate their power – even perhaps at the risk of losing it. If they do act, they may be limited by politics; but if they don’t, they already have been.

*See what I did there? That’s the kind of skill you learn in a quality grad school.

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Stephanie Carvin is an Associate Professor of International Relations at the Norman Paterson School of International Affairs. Her research interests are in the area of international law, security, terrorism and technology. Currently, she is teaching in the areas of critical infrastructure protection, technology and warfare and foreign policy.

Stephanie holds a PhD from the London School of Economics and published her thesis as Prisoners of America’s Wars: From the Early Republic to Guantanamo (Columbia/Hurst, 2010). Her most recent book is Science, Law, Liberalism and the American Way of Warfare: The Quest for Humanity in Conflict” (Cambridge, 2015) co-authored with Michael J. Williams. In 2009 Carvin was a Visiting Scholar at George Washington University Law School and worked as a consultant to the US Department of Defense Law of War Working Group. From 2012-2015, she was an analyst with the Government of Canada focusing on national security issues.
Stacie Goddard